Full Opinion

Case: 25-60618 Document: 103-1 Page: 1 Date Filed: 11/12/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED November 12, 2026 No. 25-60618 Thomas B. Plunkett, III Summary Calendar Clerk ____________ First Service Bank, Plaintiff—Appellee, versus Thomas L. Swarek, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:24-CV-20 ______________________________ Before Higginbotham, Smith, and Ho, Circuit Judges. Per Curiam: * Thomas Swarek, proceeding pro se, appeals the district court’s grant of summary judgment in favor of First Service Bank (“FSB”) on his guaranty of a $50 million loan, as well as its alternative denial of his motion to set aside default and entry of default judgment. He challenges FSB’s authority to recover the full debt, the calculation of the judgment, and the district court’s _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-60618 Document: 103-1 Page: 2 Date Filed: 11/12/2026 No. 25-60618 reliance on evidence submitted with FSB’s summary judgment reply. He also contends that the default rulings rest on the same flawed merits analysis. We AFFIRM. I. In 2020, FSB entered into a $50,000,000 loan agreement with El Dorado Gas & Oil, Inc., with Swarek as a guarantor. FSB subsequently sold a 95% participation interest in the loan to MS Facilities 2020 LLC (“MS Facilities”), retaining a 5% interest and serving as the loan’s servicing agent. After the borrower defaulted, FSB accelerated the debt and sought to recover the outstanding balance from Swarek pursuant to his guaranty. FSB filed the present suit in January 2024, seeking judgment against Swarek for failure of his payment obligations. After Swarek did not timely answer, the clerk entered default, which Swarek promptly moved to set aside. FSB subsequently moved for summary judgment. Swarek opposed the motion, arguing that FSB could recover only its 5% interest in the loan and that MS Facilities was a necessary party. FSB responded with additional evidence concerning its authority to enforce the entire debt. The district court granted summary judgment for FSB, concluding that it was contractually authorized to recover the full outstanding balance and that MS Facilities was not a required party. In the alternative, the court also denied Swarek’s motion to set aside default and granted FSB’s motion for default judgment. The court entered judgment for $54,928,751.83, which became final following dismissal of the remaining claims against another defendant. Swarek appealed. II. We review a district court’s grant of summary judgment de novo, viewing all evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party’s favor. Dediol v. Best 2 Case: 25-60618 Document: 103-1 Page: 3 Date Filed: 11/12/2026 No. 25-60618 Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). III. The district court did not err in granting summary judgment. “[S]uits on promissory notes provide fit grist for the summary judgment mill.” Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1023 (5th Cir. 1995) (quoting FDIC v. Cardinal Oil Well Servicing Co., 837 F.2d 1369, 1371 (5th Cir. 1988)). FSB produced the loan documents, Swarek’s guaranty, and sworn evidence establishing default and the outstanding balance. Swarek does not dispute that he was late on payments owed to FSB. He instead contends that FSB lacked authority to recover the entire debt. Although FSB sold a 95% participation interest to MS Facilities, the participation and servicing agreements established that FSB retained title to the loan and authority to enforce the entire obligation. And MS Facilities “support[ed] FSB’s decision to pursue this litigation for the full amount to the debt.” Swarek identifies no evidence creating a genuine dispute concerning FSB’s enforcement authority. Nor, as explained by the district court, was MS Facilities a required party to the action under Federal Rule of Civil Procedure 19(a). Swarek also challenges the amount of the judgment, arguing that FSB failed to adequately substantiate its calculation of principal, interest, and fees. But Swarek did not raise these objections before the district court, instead challenging FSB’s authority to recover payment in full. He has therefore forfeited the argument on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 3 Case: 25-60618 Document: 103-1 Page: 4 Date Filed: 11/12/2026 No. 25-60618 397–98. In any event, FSB submitted a sworn declaration itemizing the outstanding balance, and the loan agreement expressly authorized capitalization of deferred interest. Swarek has identified no evidence of an incorrect calculation to create a genuine dispute of material fact. Finally, Swarek challenges the district court’s reliance on evidence first submitted with FSB’s summary-judgment reply. We review such evidentiary rulings for abuse of discretion. Huynh v. Walmart Inc., 30 F.4th 448,458 (5th Cir. 2022) (citation omitted). “[W]hen a party raises new arguments or evidence for the first time in a reply, the district court must either give the other party an opportunity to respond or decline to rely on the new arguments and evidence.” Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 774 (5th Cir. 2024) (citation omitted). Swarek was not denied the opportunity to respond. He neither objected to the evidence nor sought leave to file a surreply in the fifty-two days before the district court ruled. Nor has he demonstrated “substantial prejudice” warranting reversal. Huynh, 30 F.4th at 458. Therefore, there is no basis to find an abuse of discretion. As summary judgment was proper, we need not address the district court’s alternative default-judgment rulings. AFFIRMED. 4